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Hooded Men: Can the use of torture by a State be justified?

In legal philosophy, there are two main sides to the torture debate, writes Conor Courtney.

Conor Courtney English and law graduate

THE EUROPEAN COURT of Human Rights did something this week that is rarely done by the courts, they offered an opinion into which practices can be seen as torture, and which cannot.

The case, Ireland v United Kingdom, involved 14 ‘Hooded Men’, who were Irish nationals tortured by British soldiers in 1971.

The outcome of this case has forced us to confront a stark reality: To what extent can the use of torture by a State be morally justified?

Enhanced interrogation techniques

Amnesty International was supportive of the men’s claims, but the court ruled against torture for hooding, forced standing in stress positions, white noise, and food, sleep, and water deprivation.

The practices employed by the British during this period would lay the foundation for the ‘Enhanced Interrogation Techniques’, which would be later adopted by the Bush Administration in their response to The War on Terror.

During the previous five years, Amnesty International has documented practices of torture in 141 countries, approximately three-quarters of the world. Their reports have shown some of the most unsettling aspects of humanity, and the true depravity that accompanies State sanctioned torture.

Among the most horrific recorded practices are; beating, electrocution, drowning, rape, murder, sexual humiliation, and being forced to walk barefoot on aids patients’ blood.

Legal philosophy

In legal philosophy, there are two main sides to the torture debate. One approach, which is the dominating position of Western societies, is that torture is never acceptable. This is reflective of an absolutist approach, as there is never a moral basis upon which one can warrant torture.

The absolutist approach hinges on two pivotal understandings; religious morality and self-evidence. Religious morality is the concept of ascertaining the morality of situations through reference to religious teachings, such as Catholicism.

‘Self-evidence’ assumes that the morality of an act can be judged as being good or bad, simply through common-sense. This approach supposes that it is self evident that torture is morally indefensible, and, thus, cannot ever be justified. This argument was made more tangible in reference to the concept of genocide.

From the absolutist perspective, the practice of annihilating an entire race is so obviously immoral, that there is no purpose in even engaging with a debate to the contrary, because the outcome of any discussion should be self-evident to all involved.

Utilitarian school of thought

Jeremy Bentham has been hailed as being a principal exponent for the utilitarian school of thought. Utilitarians propose that nothing, in theory, is ever intrinsically wrong. Their argument is that each case is different, and merits individual inspection to observe whether it is morally acceptable or not.

They strive for, ‘The greatest happiness of the greatest number’, so, if the torture of one person could save 100 lives, then they would have no objections.

But both of these approaches are more appropriate as academic debates, and lose much of their certainty in real life situations. To avoid being seen as torturing prisoners, the Bush Administration simply redefined what torture entailed.

For the US, it was only torture if it was: “Equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”. Although this stance was later relaxed, some still see torture in the treatment of death-row inmates, as no medical training is required to administer painful execution injections.

The main issue with torture, from both perspectives, is that it has been proven to be unreliable, and it undermines civilian support towards the government involved in the torture.

The decision of the ECHR is not surprising, it is simply another example of endemic State torture going ignored yet again.

Conor Courtney is an aspiring writer living in Dublin. He became interested in writing while studying English in Trinity College Dublin, and Law in Dublin Business School.

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About the author:

Conor Courtney  / English and law graduate

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